RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0185p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTINA CARMAN,

Defendant-Appellant.

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No. 17-5074

Appeal from the United States District Court

for the Eastern District of Kentucky at Ashland.

No. 0:14-cr-00020-2—David L. Bunning, District Judge.

Argued: May 3, 2018

Decided and Filed: August 6, 2019

Before: SUHRHEINRICH, GIBBONS, and KETHLEDGE, Circuit Judges.

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COUNSEL

ARGUED: Nicole S. Elver, DRESSMAN BENZINGER LAVELLE PSC, Louisville, 

Kentucky, for Appellant. John M. Pellettieri, UNITED STATES DEPARTMENT OF JUSTICE, 

Washington, D.C., for Appellee. ON BRIEF: Nicole S. Elver, Kent Wicker, DRESSMAN 

BENZINGER LAVELLE PSC, Louisville, Kentucky, for Appellant. John M. Pellettieri, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Laura K. Voorhees, 

UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

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OPINION

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KETHLEDGE, Circuit Judge. Subject to very few exceptions, the filing of a notice of 

appeal shifts from the district court to the court of appeals adjudicatory authority over any aspect 

>
No. 17-5074 United States v. Carman Page 2

of the case—here, Christina Carman’s conviction and sentence—involved in the appeal. Yet 

here—more than four months after the district court had entered its criminal judgment, and 

nearly as long after Carman had appealed—the district court purported to amend her sentence by 

entering a $17.5 million forfeiture order. By then the district court had lost authority to enter that 

order (though not for the reasons Carman says). We therefore vacate the order.

In 2014, Carman was indicted with three co-defendants for her involvement in a yearslong conspiracy to sell untaxed cigarettes on a massive scale. See United States v. Maddux, 

917 F.3d 437 (6th Cir. 2019). The indictment stated that the government would seek both the 

forfeiture of various items of property and a money judgment in the amount of $45 million, 

representing alleged proceeds of the conspiracy. On January 27, 2016, a jury convicted Carman 

(along with two of her co-defendants; one had pled guilty) of conspiracy to commit mail and 

wire fraud. The district court held a forfeiture hearing the next day. See generally Fed. R. Crim. 

P. 32.2(b)(1). At the hearing, the government stated that the only items of property it sought 

from Carman were two Cadillac Escalades, which she agreed to forfeit. That left the question of 

a money judgment, which the parties agreed to submit on briefs. Accordingly, the government 

later moved for a preliminary order of forfeiture, see generally Fed. R. Crim. P. 32.2(b)(2), 

requesting a money judgment against Carman of about $35 million. Carman responded in 

opposition. By April 2016 the matter was fully briefed. 

There matters stood until August 30, 2016, when the district court sentenced Carman and 

each of her co-defendants. The district court sentenced Carman to 60 months’ imprisonment 

without ruling upon the government’s motion for a money judgment or otherwise mentioning a 

forfeiture order. (The district court later stated during a different defendant’s sentencing 

hearing—which is to say, a hearing not relevant here—that it would “take up later” the issue of 

“any money judgments[.]” R. 623 at 7339.). Nor did the government ask for such an order 

during Carman’s hearing. The very next day—August 31, 2016—the district court entered its 

criminal judgment in Carman’s case. (That judgment included a cryptic reference to the 

forfeiture of in rem property, but the government does not dispute that the reference was a 

clerical error.) On September 6, 2016, Carman filed a notice of appeal as to that judgment. 
No. 17-5074 United States v. Carman Page 3

Our court thereafter set a briefing schedule, pursuant to which Carman filed her opening brief on 

January 3, 2017.

Two weeks later—and more than four months after Carman appealed her conviction and 

sentence to this court—the district court entered a forfeiture order against Carman in the amount 

of approximately $17.5 million. Carman then filed a notice of appeal as to that order, which is 

the appeal before us now.

Carman argues that the district court lacked jurisdiction to enter that order because it was 

entered in violation of Federal Criminal Rule 32.2. Her argument’s premise is correct. In cases 

where the district court “finds that property is subject to forfeiture,” the court must, whenever 

possible, enter a preliminary order of forfeiture “sufficiently in advance of sentencing to allow 

the parties to suggest revisions or modifications” before the defendant’s sentencing hearing. 

Fed. R. Crim. P. 32.2(b)(2)(A), (B). Yet no preliminary order was entered here. The district 

court also “must include the forfeiture when orally announcing the sentence or must otherwise 

ensure that the defendant knows of the forfeiture at sentencing.” Id. 32.2(b)(4). The preliminary 

forfeiture order then “becomes final as to the defendant” “[a]t sentencing.” Id. Yet here the 

district court made no mention of forfeiture during Carman’s sentencing. Instead it entered a 

forfeiture order more than four months later.

But Carman’s conclusion—that on these facts the Criminal Rules had divested the district 

court of jurisdiction to enter its January 17, 2016 forfeiture order—does not follow. The 

Supreme Court has repeatedly made clear that deadlines in court rules are “nonjurisdictional[.]” 

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 (2019); see also, e.g., Bowles v. Russell, 

551 U.S. 205, 211 (2007) (“[I]t [is] improper for courts to use the term ‘jurisdictional’ to 

describe emphatic time prescriptions in rules of court.”) (internal quotation marks omitted); 

Kontrick v. Ryan, 540 U.S. 443, 453 (2004) (“It is axiomatic” that court rules “do not create or 

withdraw federal jurisdiction.”) (brackets and internal quotation marks omitted). Deadlines in 

court rules of course remain enforceable, since they “assure relief to a party properly raising 

them[.]” Eberhart v. United States, 546 U.S. 12, 19 (2005). But they “do not compel the same 

result if the party forfeits them.” Id. Carman’s only argument here, however, is jurisdictional. 

And the district court’s violations of Rule 32.2 (which, in the court’s defense, came in the midst 
No. 17-5074 United States v. Carman Page 4

of a sprawling multi-defendant case) did not themselves deprive the court of jurisdiction to enter 

the forfeiture order.

But Carman’s notice of appeal did nearly the same thing. “Filing a notice of appeal 

transfers adjudicatory authority from the district court to the court of appeals.” Manrique v. 

United States, 137 S. Ct. 1266, 1271 (2017). Specifically, the filing “confers jurisdiction on the 

court of appeals and divests the district court of its control over those aspects of the case 

involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per 

curiam). The district court does retain “limited jurisdiction to take actions in aid of the appeal.” 

United States v. Sims, 708 F.3d 832, 834 (6th Cir. 2013) (internal quotation marks omitted). But 

that class of actions is “narrowly defined,” id., and does not include “actions that alter the case 

on appeal.” Inland Bulk Transfer Co. v. Cummins Engine Co., 332 F.3d 1007, 1013 (6th Cir. 

2003) (emphasis added and internal quotation marks omitted).

Carman’s notice of appeal stated that she was appealing the district court’s judgment in 

her criminal case. That judgment included both her conviction and sentence. Upon the filing of 

her notice of appeal, therefore, adjudicatory authority over “those aspects” of Carman’s case—

i.e., her conviction and sentence—passed to this court. Griggs, 459 U.S. at 58.

A forfeiture order is “part of the [defendant’s] sentence in the criminal case[.]” 28 U.S.C. 

§ 2461(c); see also Fed. R. Crim. P. 32.2(b)(4)(B); Libretti v. United States, 516 U.S. 29, 38-39 

(1995) (“Forfeiture is an element of the sentence[.]”). The issue of forfeiture thus fell within the 

“aspects of the case” as to which Carman’s notice of appeal transferred adjudicatory authority to 

this court. Griggs, 459 U.S. at 58. And the district court’s narrow authority to take “actions in 

aid of the appeal” did not include the authority to enter a forfeiture order. To the contrary, that 

order—which “ordered that the Judgment and Commitment Orders for [Carman] be amended,” 

see R. 664 at 7721—“alter[ed] the case on appeal” by altering the sentence itself. See Inland 

Bulk, 332 F.3d at 1013 (internal quotation marks omitted). The district court therefore lacked 

authority to enter its forfeiture order months after Carman had filed her notice of appeal.

A recent case from the First Circuit follows the same analysis. See United States v. 

George, 841 F.3d 55 (1st Cir. 2016). There—“‘with the consent of the parties,’” no less—the 
No. 17-5074 United States v. Carman Page 5

district court “deferr[ed] any decision on forfeiture” until after George’s sentencing. Id. at 70. 

The court promptly entered its criminal judgment; George filed a notice of appeal the next day. 

Id. Almost two months later, the district court entered a forfeiture order. See id. The First 

Circuit held sua sponte that the district court lacked authority to do so. Id. at 70-71. The court 

observed that “shared jurisdiction almost always portends a potential for conflict and confusion”; 

that “a docketed notice of appeal suspends the sentencing court’s power to modify a defendant’s 

sentence”; and that “[t]his proscription extended to the court’s attempt to introduce into the 

judgment, for the first time, a forfeiture order.” Id. at 71 (internal quotation marks omitted). All 

of that reasoning applies here.

The government argues that we should simply disregard the district court’s lack of 

adjudicatory authority to enter the January 17, 2017 forfeiture order, asserting that vacatur of that 

order would result in mere “paper shuffling”—in the form of re-entry of the same order on 

remand. But the government nowhere explains how the Criminal Rules would permit entry of 

that order over Carman’s objection, after her sentence was not only imposed in the district court 

but affirmed on appeal. Nor do we see any basis to disregard—on what the government calls 

“pragmatic” grounds, or otherwise—the Supreme Court’s decisions making clear that the district 

court lacked authority to enter the forfeiture order. See Griggs, 459 U.S. at 58; Manrique, 137 S. 

Ct. at 1271. Hence we have no basis to uphold the order before us now.

It remains only to note that, even though the district court lacked authority to enter its 

forfeiture order, we have jurisdiction over this appeal. See 18 U.S.C. § 3742(a)(1) (authorizing 

review of a sentence “imposed in violation of law”).

* * *

We vacate the district court’s January 17, 2017 forfeiture order as applied to Carman, and 

remand the case for further proceedings consistent with this opinion.